<h3>Introduction and Regulatory Framework</h3>
On March 19, 2025, FINMA published the <a href="https://www.finma.ch/en/~/media/finma/dokumente/dokumentencenter/myfinma/rundschreiben/finma-rs-2025-04-20250305.pdf?sc_lang=en&amp;hash=F556F70A1A6F58F3F188F398E846DA81">Circular 2025/4</a> «Consolidated Supervision of Financial Groups under the BA and FinIA» (the Circular).
Pursuant to article 3b of the Federal Act on Banks and Savings Institutions (the BA) and article 49 of the Federal Act on Financial Institutions (FinIA), the Swiss Financial Market Supervisory Authority (FINMA) may subject financial groups regulated under the BA and FinIA, respectively, to its consolidated supervision. The main objective of FINMA&#8217;s regulatory consolidated supervision is to enable FINMA to assess the financial stability of institutions embedded within financial groups, considering not only individual entities but the group as a whole. By formalizing this regulatory approach on a consolidated level, FINMA aims to mitigate risks associated with interconnected financial entities and to ensure compliance with regulatory requirements on a consolidated level.
The scope of consolidated supervision (regulatory scope of consolidation) for banks and FinTech companies pursuant to article 1b BA is determined in accordance with article 3c BA and articles 21-24a of the Federal Ordinance of Banks and Savings Institutions (BO). Thereunder two or more entities of a financial group may be subjected to FINMA&#8217;s consolidated supervision, if: (i) at least one entity is licensed as a bank or a securities firm; (ii) the entities are predominately active in the financial sector and (iii) the entities form an economic unit or it must be assumed that the respective regulated entity would factually and/or legally be subject to a duty to provide support to the other relevant group entities (Beistandspflicht) (the Circular collectively refers to this requirement as forming part of an «interconnected system»). For securities firms regulated under FinIA, the regulatory scope of consolidation is determined in accordance with article 49 FinIA, whereas the provisions of the BA and the BO outlined apply by analogy to financial groups dominated by securities firms (article 49(3) FinIA).
To date FINMA&#8217;s supervisory practice has been communicated to the relevant regulated entities in the form of case-by-case decrees under which FINMA (i) confirmed that the requirements for a consolidated supervision were met and (ii) defined the scope of the consolidated supervision (and the requirements to be satisfied thereunder) for the respective financial group. With the Circular, FINMA intends to publish its existing regulatory practice and clarify the requirements for a consolidated supervision.
Further, the Circular only focuses on the consolidated supervision from a regulatory perspective, whereas the regulatory scope of consolidation may in practice differ from the scope of consolidation from an accounting perspective which is determined in accordance with the accounting standard applied by the respective financial group. It should be noted that in the case of international financial groups or conglomerates, different regimes of consolidation must also be taken into account that may not be fully aligned with the Swiss regulatory concept.
<h3>Requirements for a Consolidated Supervision</h3>
The determination whether a company is included in the regulatory scope of consolidation depends on two key factors: an activity in the financial sector and the relevant entities being part of an interconnected system. To the extent that these requirements are satisfied, the Circular clarifies that the consolidated supervision by FINMA, in general, covers all group companies of a financial group that are active in the financial sector. This includes, in particular, special purpose vehicles (SPVs) that meet the specific requirements detailed in the Circular for inclusion in the regulatory scope of consolidation. Consequently, in order to avoid that SPVs that were established for off-balance-sheet issuances are included in the scope of regulatory consolidation of the respective group, safeguards will have to be put in place to avoid the requirements set out below being met.
<h4>Activity in the Financial Sector</h4>
The term financial sector is broadly defined in article 4 of the Banking Ordinance. The Circular, however, provides additional clarifications regarding which activities should be considered being performed in the financial sector. The Circular includes a broad definition of the term activity in the financial sector and the term should in FINMA&#8217;s view cover the provision and intermediation of all kinds of financial services and is not limited to activities that are subject to licensing or registration requirements under the financial market laws of Switzerland. Pursuant to the Circular, the term activity in the financial sector includes activities, such as finance leasing, factoring, credit card business, participation in issuances, custody of securities, payment services, and the issuance and custody of payment instruments. In contrast, group companies that carry out purely commercial, industrial, or administrative activities are not considered to be active in the financial sector (article 4(1)(a) BO e contrario).
The Circular also clarifies that FINMA will apply a substance over form test, when assessing whether a specific activity should be deemed to constitute an activity in the financial sector.
<h4>Economic Unit</h4>
As outlined above, for two entities to form a financial group within the meaning of article 3b BA they must be part of an interconnected group. According to article 3c(1)(c) BA, in order for an interconnected system to be assumed, the companies operating in the financial sector must form an economic unit or be linked by a legal duty to provide support or a de facto obligation to provide support (Beistandspflicht). According to article 21(1) BO, an economic unit exists if a company directly or indirectly holds more than half of the equity or voting rights in other group companies or controls them by other means. The Circular provides further (non-exhaustive) clarifications on when a control by other means may be assumed; whereas a combination of different means of control will be taken into account by FINMA when assessing whether two entities form part of an economic unit. Pursuant to the Circular, the following constellations may be deemed a form of control:
<ul>
<li>the control of voting rights on the basis of an agreement with other shareholders;</li>
<li>the direct or indirect right to appoint or remove a majority of the members of the board of directors; and</li>
<li>a significant influence on the management (g., through the – contractual or other – authority to exercise a significant influence over the executive management or business operations, for example through co-decision rights with regard to important decisions).</li>
</ul>
<h4>Duty to Support</h4>
The inclusion of a company in consolidated supervision can also be triggered by other elements, aspects and circumstances of a legal or factual nature that indicate a legal or de facto obligation to provide support. Article 21(2) BO sets out the main regulatory criteria for assessing whether a legal or de facto obligation to provide support applies. In this context the Circular further clarifies that a legal or de facto obligation to provide support pursuant to article 21 (2) BO may arise in particular from:
<ul>
<li>strategic, personnel, organizational or financial interdependencies;</li>
<li>cooperations and dependencies;</li>
<li>the use of a joint company name;</li>
<li>a uniform market presence; or</li>
<li>letters of comfort, keep-well agreements or similar guarantees.</li>
</ul>
The Circular further clarifies that the list of circumstances mentioned above that may give rise to an obligation to provide support is not exhaustive. This means that other links can also lead to a de facto obligation to provide support if these may create the impression for third parties that there is an interconnected system.
<h4>Categorizing Financial Groups according to Structure</h4>
The Circular categorizes financial groups into different structures. With different regulatory requirements potentially applying to the different categories:
<ul>
<li>Parent company structure: The financial group is headed by an institution (parent company) with operational business activities. The regulatory scope of consolidation includes the parent company and one or more group companies that are active in the financial sector.</li>
<li>Holding structure: The financial group is headed by a holding company. The holding company controls at least one institution active in the financial sector. The top holding company active in the financial sector is generally the top unit of the financial group for consolidation purposes. In justified cases, FINMA may exclude a holding company from the regulatory scope of consolidation if it is immaterial for the consolidated supervision. A holding company is deemed immaterial if it (i) does not control any other company active in the financial sector, (ii) does not engage in financial activities of its own, (iii) has no influence on the group&#8217;s business activities, and (iv) is not significantly leveraged.</li>
<li>Atypical structures: Atypical structures include contractual groups and similar structures as well as de-facto financial groups. In contractual groups, the group companies are linked by a contract rather than control of equity or voting rights. De-facto financial groups are headed by one or more individuals who control other companies active in the financial sector in addition to an institution domiciled or effectively managed in Switzerland.</li>
<li>Subgroup of a foreign financial group: This financial group is subject to consolidated supervision by FINMA and is part of a foreign financial group. The subgroup may be controlled either directly by a foreign parent company or indirectly through a holding company or other entities of the foreign financial group. The subgroup can have different types of structures internally.</li>
<li>Subordinated financial group: A subordinated financial group is a subgroup within a financial group supervised by FINMA, consisting of at least one institution based in Switzerland and one or more group companies operating in the financial sector. Internally, a subordinated financial group may have either a parent company structure or a holding structure.</li>
</ul>
<h3>Content of Consolidated Supervision</h3>
In application of the principles set out under article 3f and 3g BA as well as article 24(1) BO the Circular clarifies the content of the consolidated supervision of FINMA. Ultimately, it must, however, be noted that FINMA will specify the relevant scope of the consolidated supervision and the relevant requirements to be satisfied thereunder on a case-by-case basis in consideration of the specific group structure and underlying risks of the financial group in question.
From a qualitative perspective the consolidated supervision will typically require the financial group to implement the following measures, respectively, adhere to the following qualitative requirements on a consolidated basis:
<ul>
<li>Appropriate organization of the financial group, in particular in consideration of the applicable requirements set out under the FINMA Circular 2017/1 – Corporate Governance Banks (with regulatory approval requirements applying for group internal policies);</li>
<li>Appropriate internal control system and risk management of the financial group;</li>
<li>Group-wide framework for the combatting of money laundering;</li>
<li>Application of «Fit and proper»- requirements for individuals which are members of the executive management or board of directors on a consolidated level;</li>
<li>Functional and personal separation of the board of directors and executive management at a consolidated level; and</li>
<li>Appointment of a recognized, independent and competent audit firm for the consolidated audit of the financial group.</li>
</ul>
In addition to the qualitative requirements outlined above the consolidated supervision will typically also include the adherence to the quantitative requirements relating to capital adequacy, risk diversification (including interest rate risk reporting), liquidity and financial reporting standards on a consolidated basis.
In the context of the scope of the regulatory consolidation and the requirements to be satisfied thereunder, it should also be noted that the Explanatory Report relating to the Circular clarifies that any changes within a financial group that may have implications relating to the scope of consolidation and/or the requirements to be satisfied thereunder, must be notified to FINMA under the regulatory notification duty pursuant to article 29(2) of the Financial Market Supervisory Act.
<h3>Regulatory Exemptions from the Consolidated Supervision</h3>
Finally, the Circular clarifies that when determining whether to subject a financial group and/or certain entities to the regulatory scope of consolidated supervision, FINMA has a considerable degree of discretion. This discretion allows FINMA to grant regulatory exemptions in justified cases, namely in the following constellations:
<ul>
<li>Exemption for immaterial group companies: Pursuant to the Circular, FINMA may exempt group companies in the financial sector from consolidated supervision or declare its content to be only partially applicable, particularly if a group company is immaterial for consolidated supervision (article 23(2) BO). FINMA grants exemptions for group companies with regard to the quantitative elements, but not with regard to the qualitative elements.</li>
<li>Implementation of ring-fencing measures: In exceptional cases, FINMA may exercise its discretion and waive the requirement for consolidated supervision. To address the specific risks of the individual case, FINMA may, however, demand that the exempted financial group implement suitable preventive ring-fencing measures or other measures (g., adjustment of the group structure) instead of adhering to a consolidated supervisory regime. Pursuant to the Circular, the following measures may be suitable ring-fencing measures, whereas such measures will typically be applied in combination: (i) corporate governance-related or structural measures aimed at strengthening the independence of the institution’s management and decision-making bodies from the financial group, (ii) financial measures to protect client assets or to limit the institution’s financial interdependencies with the financial group, and (iii) reduction of business interdependencies. These measures would typically be combined with specific information and reporting obligations to FINMA.</li>
</ul>
<h3>Outlook</h3>
The assessment of compliance with the requirements regarding the consolidated supervision of financial groups is primarily conducted by the regulatory audit companies of the respective financial institutions and reported to FINMA under the yearly regulatory audit. As outlined above, the main purpose of the Circular is to publish FINMA&#8217;s existing practice regarding its supervisory activities over financial groups. Accordingly, we do not believe the Circular introduces any new or additional requirements beyond those that were already in place prior to its enactment.
The Circular does, however, provide helpful guidance on assessing the relevant requirements FINMA applies in the context of its consolidated supervisory activities. The clarifications included in the Circular may for instance provide helpful guidance on the measures which need to be implemented by financial groups intending to establish orphan issuance structures (namely white-labelling platforms) to avoid a regulatory consolidation of such issuance structures.
<h3>Homburger Hub – Regulatory Innovations</h3>
The Swiss financial market regulation remains subject to wide-ranging revisions with considerable developments expected for the years 2025 and 2026. The Federal Council has announced regulatory initiatives in the areas of the revision of the Financial Market Stability, Financial Market Infrastructure Act, and FinTech-regulation.
These regulatory developments will affect various Swiss financial market participants and are worth following closely. In order to ensure that you remain informed and up-to-date, we have established the Homburger Hub – Regulatory Innovations on which we regularly update on these regulatory developments.

Homburger Bulletin

FINMA Circular on Consolidated Supervision of Financial Groups 

<h3>Legal Classification of FINMA Circulars</h3>
FINMA is obliged to apply and enforce the laws and ordinances issued by the legislator. In accordance with article 7(1)(b) of the Federal Act on the Swiss Financial Market Supervisory Authority, FINMA regulates the application of financial market legislation by means of circulars, among other things. FINMA circulars merely serve to create transparency regarding FINMA&#8217;s supervisory practice and to clarify questions of interpretation; they are not of a legislative nature and must not introduce any obligations that deviate from or go beyond the law or ordinance (article 5(2) of the Ordinance to the Financial Market Supervision Act).
<h3>Key Points of the FINMA Circular</h3>
The circular &#8222;Duties of conduct under FinSA/FinSO&#8220; contains several key points, some of which were amended during the consultation process:
<ul>
<li>Services excluded (or covered) by the FinSA: According to article 3(3)(b) of the Ordinance on Financial Services (FinSO), the placement of financial instruments with or without a firm underwriting commitment and related services are not considered financial services within the meaning of article 3(c) of the Federal Act on Financial Services (FinSA). The explanatory notes to the FinSO of November 6, 2019 of the Federal Department of Finance FDF already stated that the FinSA serves to protect investors, i.e. in this context it is aimed at the offering of financial instruments to investors, but not at the relationship of the service provider with companies and their shareholders as partners who finance themselves via the capital market. The FINMA-Circular 2025/2 takes up this wording. FINMA&#8217;s explanatory notes to the circular provide further clarity: neither the financial services providers nor the company seeking financing are to be regarded as particularly worthy of protection in relation to an investment activity. The FinSA serves to protect investors and not issuers. However, if the service relates directly to the relationship between the financial service provider and its clients in their capacity as investors and thus &#8222;clients&#8220; within the meaning of article 3(c) FinSA, the placement of financial instruments may constitute a financial service. 
In our understanding, this corresponds to the situation as held by the majority of literature and existing practice to date. Members of a syndicate or banks, securities firms or pure intermediaries (reine Vermittler) acting exclusively for the issuers or e.g. selling founders, who do not perform this activity for their clients acting as investors on the buy side, are not subject to FinSA. As the literature focuses here on the de facto appearance and bona fide understanding of the buyers, organizational or other measures (e.g. disclaimers or clarifications) must be taken/reviewed to ensure that this role is also recognizable as such.</li>
<li>Duty to provide information: The FINMA-Circular 2025/2 also contains FINMA practice and requirements for fulfilling the duty to provide information under FinSA.
<ul>
<li>Compared to the draft circular, however, the requirements for the form of the information have been simplified. Information on the form of the information is now dispensed with and reference is made instead to existing statutory provisions (article 9(3) FinSA in conjunction with article 12 FinSO).</li>
<li>The circular provides for various information obligations regarding risk disclosure on contracts for difference (CFDs). In contrast to the draft, the final circular adds quarterly information for private clients who have suffered a total loss of margin on CFDs in the last 12 months. This is intended to increase transparency and enable clients to better understand the risks.</li>
<li>The final circular provides for a requirement to inform about the nature and extent of concentration risks insofar as risk concentrations in client portfolios that are not customary in the market are not excluded in asset management and portfolio-related investment advice and specifies customary types of such information.</li>
</ul>
</li>
<li>Requirements regarding the appropriateness and suitability test: Financial service providers create risk profiles of their clients by obtaining information for the appropriateness and suitability test. According to the FINMA-Circular 2025/2, all information required for the appropriate performance of the appropriateness and suitability test must be obtained. Financial service providers must check the knowledge and experience of clients for each relevant investment category. In the case of asset management and portfolio-related investment advice, they also must take into account the investment strategy and financial instruments used. The required level of detail of the inquiries depends on the complexity and risk profile of the investments and the investment strategies.</li>
<li>Securities lending: The FINMA-Circular 2025/2 also specifies the minimum information required and to be documented when using clients&#8216; financial instruments (securities lending). This includes whether the financial service provider acts as a counterparty (principal) or as an agent, that the ownership of financial instruments is transferred to the counterparty and that there is only a claim to the same type and quantity being repurchased, that in the event of bankruptcy of the counterparty, there is only a non-privileged monetary claim, etc.</li>
<li>Client information when considering own financial instruments: Financial service providers inform customers whether the market offering considered by the financial services provider in the selection of financial instruments includes only their own, both their own and third-party, or only third-party financial instruments. When considering its own financial instruments, the financial services provider must avoid creating specific incentives in the remuneration of the persons involved in the rendering of the financial services and the customers must be informed about unavoidable conflicts of interest resulting from considering its own financial instruments.</li>
<li>Compensation from third-parties / retrocessions: FINMA specifies its expectations regarding the form and content of client information on third-party compensation / retrocessions that the financial services provider receives and retains with the consent of its customer.</li>
</ul>
The information about retrocessions in the financial services provider&#8217;s standard contracts must be visually highlighted and must be physically available to the customer or easily accessible electronically.
In respect of the content of the information to be disclosed, the ranges of third-party compensations of the different classes of financial instruments as well as the ranges of third-party compensation based on the portfolio value and the applied investment strategy have to be provided in case of an asset management relationship. According to the FINMA, the same disclosure standard applies in case of portfolio-related investment advice. As the investment decision is with the customer when providing only investment advice, the financial services provider will need to determine the ranges of third-party compensation based on the recommended investment strategy and irrespective of whether the customer follows the recommended investment strategy in order to meet the FINMA&#8217;s expectation expressed in the circular.
The financial service providers disclose the actual amounts received to the customers upon request, generally free of charge. Exceptionally, in the case of extraordinary effort, such as multiple exercises of the right to information within a year, a moderate, at most cost-covering flat fee may be charged.
Compared to the consultation draft, not only have individual points in the FINMA-Circular 2025/2 itself been adjusted, but also various explanations. It is advisable to read these explanations carefully in order to better understand the nuances of FINMA&#8217;s statements in the circular. In our opinion, this applies in particular with regard to the delimitations concerning article 3(3)(b) FinSO and to better understand the differences between asset management, portfolio-related investment advice and transaction-related investment advice in the FINMA-Circular 2025/2.
<h3>Need for Action</h3>
Despite the amendments to the final circular, there is still a need for action in certain areas. In particular:
<ul>
<li>Article 3(3)(b) FinSO: For service providers who are not subject to FinSA (and do not intend to be), an analysis of their own activities and practice is recommended. Service providers must be sure for whom they are acting and how and/or whether the necessary clear (organizational, etc.) separation exists. The bona fide impression must also be critically scrutinized and, if necessary, it must be ensured through training, disclaimers and other measures that the services are not subject to FinSA.</li>
<li>Information on retrocessions: In order to retain third-party compensation, financial service providers must make customers aware of the third-party compensation expected to be received by the financial services provider. FINMA expects from the financial services provider that such information in standard contracts is highlighted visually or, alternatively, disclosed in a separate letter or form. This information must be physically presented to customers or easily accessible electronically. A general reference to the financial service provider&#8217;s website is not considered sufficient.</li>
</ul>
As FINMA expects the same disclosure for portfolio-related investment advice as for portfolio management, the financial services provider will need to determine and disclose the ranges of third-party compensation based on the recommended investment strategy for the portfolio.
The new FINMA circular &#8222;Duties of conduct under FinSA/FinSO&#8220; comes into force on January 1, 2025 and is intended to increase transparency and legal certainty in the financial services sector. It remains to be seen how financial service providers will implement the new requirements and what further adjustments will be necessary in practice.

FINMA Circular "Duties of Conduct Under FinSA/FinSO"

On July 26, 2024, FINMA published <a href="https://www.finma.ch/en/news/2024/07/20240726-m-am-06-24-stablecoins/">Guidance 06/2024</a> «Stablecoins: risks and challenges for issuers of stablecoins and banks providing guarantees» (Guidance 06/2024). Whilst the «Guidances» (Aufsichtsmitteilungen) published by FINMA are not of a normative nature and therefore may not stipulate additional requirements on financial institutions going beyond the existing legislation, FINMA utilizes Guidances to publish its supervisory practice and interpretation of the Swiss financial market laws.
<h3>What the New Guidance 06/2024 Says</h3>
Guidance 06/2024 sets out FINMA&#8217;s expectation that the identity of all persons holding stablecoins be adequately verified by the issuing institution or by appropriately supervised financial intermediaries. 
This expectation is based on the notion that the stabilization mechanism used by stablecoin issuers «generally» involves a stablecoin holder having a payment claim against the issuer at any time, which may be considered a deposit if the underlying assets are managed for the account and risk of the issuer (as previously communicated by FINMA in its <a href="https://www.finma.ch/en/~/media/finma/dokumente/dokumentencenter/myfinma/1bewilligung/fintech/wegleitung-stable-coins.pdf?sc_lang=en&amp;hash=68854A0D6DAFC3F8F1D4F1C9AF56BA4D">2019 supplement to its ICO guidelines</a>). It remains to be seen whether it will be applied equally to stablecoin arrangements not relying on a claim against the issuer as a stabilization mechanism or other similar arrangements involving counterparty risk.
In the new Guidance 06/2024, FINMA not only reminds financial intermediaries of the KYC/CDD requirements set out under the Anti-Money Laundering Act (identification of the customer; determination of the identity of the beneficial owner; repetition of the procedure in the event of subsequent doubts).
Guidance 06/2024 also refers to FINMA&#8217;s practice already published in its <a href="https://www.finma.ch/en/~/media/finma/dokumente/dokumentencenter/myfinma/finma-publikationen/geschaeftsbericht/20220405-finma_jahresbericht_2021.pdf">2021 Annual Report</a> (p. 19), according to which «contractual and, where appropriate, technological transfer restrictions are required for the issue of stable coins by supervised institutions. All persons disposing of stable coins must be sufficiently identified by the issuing institution or by adequately supervised distribution partners in order to comply with the due diligence obligations under the Anti-Money Laundering Act for all transactions with stable coins.» It further cites a <a href="https://www.newsd.admin.ch/newsd/message/attachments/86329.pdf">2024 report by the CGMF</a> (interdepartmental coordinating group on combating money laundering and the financing of terrorism), which characterizes this (at p. 28) as a technology-neutral application of the ban on bearer savings accounts contained in the Swiss Bankers Association&#8217;s Agreement on the Swiss Banks&#8216; Code of Conduct with Regard to the Exercise of Due Diligence (CDB 20), which applies primarily to banks licensed in Switzerland.
The new Guidance 06/2024 links this prohibition of anonymous transfers, which was previously primarily expressed in relation to banks, to the general obligations of all financial intermediaries under the Anti-Money Laundering Act.
In the <a href="https://www.finma.ch/en/~/media/finma/dokumente/dokumentencenter/myfinma/1bewilligung/fintech/wegleitung-stable-coins.pdf?sc_lang=en&amp;hash=68854A0D6DAFC3F8F1D4F1C9AF56BA4D">2019 supplement to its ICO guidelines</a>, FINMA had already stated that the Anti-Money Laundering Act is «almost always applicable» to stablecoins, albeit based on their use as a means of payment and thus not necessarily imposing any obligations on the issuer in the context of transactions without its direct involvement.
While apparently going beyond imposing KYC/CDD requirements on stablecoin issuers only at the points of issuance and redemption, we do not believe there should be a general requirement for stablecoin issuers to identify each individual holder beforehand if contractual or technological solutions (e.g. limiting transfers to VASPs complying with anti-money laundering requirements or other forms of whitelisting) ensure compliance with the Anti-Money Laundering Act.
Guidance 06/2024 sets out restrictions on the use of default guarantees issued by regulated banks as a means for stablecoin issuers to avoid being treated as banks themselves.
Under the Banking Ordinance, claims against stablecoin issuers guaranteed by a licensed bank are exempt from the treatment as regulated deposits and therefore do not cause the stablecoin issuer to carry on an activity requiring authorization under the Banking Act. According to FINMA, various stablecoin issuers in Switzerland use such default guarantees in lieu of an authorization under the Banking Act.
Guidance 06/2024 lists a number of requirements that must be met by a default guarantee in order for the exemption from the authorization requirement to apply:
<ul>
<li>Each customer must have their own claim against the Swiss bank issuing the default guarantee and been informed of the guarantee.</li>
<li>The default guarantee must cover public deposits with interest.</li>
<li>Claims to be covered by the default guarantee must not exceed its upper limit.</li>
<li>The specifics of the default guarantee must permit rapid guarantee calls by customers.</li>
<li>Defenses and objections by the issuing bank are permitted to the extent provided by law.</li>
<li>Customers&#8216; claims under the guarantee must become due at the latest at the time of the stablecoin issuer&#8217;s insolvency, i.e. at the latest at the time of the opening of bankruptcy proceedings against the stablecoin issuer, and not only at the time of the issuance of a certificate of loss.</li>
<li>If there are multiple default guarantees, the increased need for coordination and the resulting operational risks must be highlighted and adequately addressed.</li>
</ul>
Guidance 06/2024 emphasizes that in the event of irregularities at the stablecoin issuer, the bank providing the default guarantee may suffer reputational damage due to its contractual relationship with the issuer and may also be exposed to legal risks.
In addition, because stablecoin holders must have a direct claim against the bank issuing the default guarantee in the event of the bankruptcy of the stablecoin issuer, there is a risk that dishonest stablecoin holders may assert their claims under the default guarantee against the bank providing the default guarantee. In such cases, the legal and reputational risks would be compounded by high regulatory costs, in particular to comply with its obligations under the Anti-Money Laundering Act.
<h3>Assessment</h3>
Guidance 06/2024 comes against the backdrop of an international emergence and evolution of not only anti-money laundering but also prudential requirements for stablecoin issuers.
Most recently, on June 30, 2024, under the European Union&#8217;s Markets in Crypto-Assets Regulation (MiCAR), the issuance in the European Union of stablecoins referencing a single fiat currency (so-called «e-money tokens») was restricted to credit institutions and e-money institutions, and the issuance of stablecoins referencing multiple fiat currencies or other underlying assets (so-called «asset-referenced tokens») was restricted to credit institutions and firms that obtain specific authorizations.
In Switzerland, a bill amending the fintech license for payment service providers (including those using stablecoin) and providers of crypto assets is currently being drafted within the Federal Department of Finance and <a href="https://www.sif.admin.ch/sif/en/home/finanzmarktpolitik/financial-market-regulation/regulatory-projects/innovative-geschaefsmodelle.html">expected to be submitted for public consultation in 2025</a>.
It therefore seems to be consistent with these developments that FINMA&#8217;s Guidance 06/2024 emphasizes the link of stablecoin arrangements to the prudentially regulated sector by highlighting the prudential considerations to be taken into account by the bank issuing the default guarantee, which currently allows stablecoin issuers to operate only under anti-money laundering regulations, and the commonalities in the respective implementations of an anti-money laundering framework that FINMA expects from regulated banks and from not prudentially regulated stablecoin issuers.
This is underlined by FINMA&#8217;s reference to the potential fragility of arrangements involving stablecoin issuers outside the prudential perimeter on the basis of a bank-issued guarantee (e.g. operational aspects relating to the terms of the guarantee, but also the lack of deposit protection for holders of such stablecoins), although some of the constraints on the use of such guarantee arrangements to be exempt from an authorization requirement under the Banking Act, as well as certain residual concerns from a prudential perspective, go beyond their application in the context of stablecoins (as Guidance 06/2024 itself points out, and as is also clear from the discussion in the <a href="https://backend.efd.admin.ch/fileservice/sdweb-docs-prod-efdadminch-files/files/2024/04/30/9fb7f508-2522-428c-a192-23b975c48e93.pdf">Federal Council&#8217;s 2022</a> report on amendments to the fintech license regime).
While the requirements set forth in the text of Guidance 06/2024 are important (and potentially quite restrictive, particularly with respect to KYC/CDD requirements), Guidance 06/2024 also signals the need for stablecoin issuers to be prepared to adapt to a rapidly evolving regulatory environment and a broadening scope of prudential regulation.

FINMA Publishes Guidance on Stablecoins

Capital Markets

Homburger News

Share-Image Teamplate Deals-and-Cases

On April 9, 2025, 21Shares AG, a leading global issuer of crypto exchange traded products (ETPs), successfully issued and listed on the SIX Swiss Exchange its new 21Shares Dogecoin ETP (DOGE), linked to and fully physically collateralized by Dogecoin. For this ETP issued by 21Shares AG, 21Shares AG has formed an exclusive partnership with the House of Doge to create a first-of-its-kind Dogecoin ETP endorsed by the Dogecoin Foundation. This ETP is traded on the SIX Swiss Exchange in the trading currencies USD and EUR.
Homburger acted as Swiss legal counsel to 21Shares AG. The Homburger team was led by Benjamin Leisinger and included Luca Gmür (both Capital Markets).

Homburger advised 21Shares AG on the issuance and listing of its Dogecoin-linked Exchange Traded Product (DOGE)

On April 2, 2025, New Zealand Local Government Funding Agency Limited successfully completed its issuance of CHF 220 m 0.77 per cent. Fixed Rate Notes due April 2, 2032, guaranteed by certain Local Authorities.
The Notes were issued under New Zealand Local Government Funding Agency Limited&#8217;s Euro Medium Term Note Programme. The Notes mark New Zealand Local Government Funding Agency Limited&#8217;s debut issuance under its EMTN Programme and first issuance in CHF. The Notes are governed by English law and have been provisionally admitted to trading, and application has been made for definitive admission to trading and listing, on the SIX Swiss Exchange. UBS Investment Bank and BNP Paribas (Suisse) SA acted as Joint-Lead Managers.
The Homburger team was led by Benjamin Leisinger and included Olivier Baum (both Capital Markets). Dieter Grünblatt provided tax advice.

Homburger advised New Zealand Local Government Funding Agency Limited on its debut issuance under its EMTN Programme and first issuance in CHF

On March 24, 2025, Swiss Life Finance I AG issued its EUR 500 m 3.750 % fixed rate bonds 2025–2035 unconditionally and irrevocably guaranteed by Swiss Life Holding AG. The bonds were placed with investors in the European market and have been provisionally admitted to trading, and application has been made for definitive admission to trading and listing of the bonds, on the SIX Swiss Exchange. The terms of the bonds and the guarantee are governed by Swiss law.
BNP PARIBAS, J.P. Morgan SE, Natixis and UBS Europe SE acted as Joint Lead Managers. UBS AG acted as Principal Paying Agent.
The Homburger team was led by Benjamin Leisinger (Capital Markets) and included Eduard De Zordi (Capital Markets). Stefan Oesterhelt provided tax advice.

Benjamin
Leisinger

Homburger advised 21Shares AG on the issuance and listing of its Dogecoin-linked Exchange Traded Product (DOGE)

Homburger advised New Zealand Local Government Funding Agency Limited on its debut issuance under its EMTN Programme and first issuance in CHF

Homburger advised the Joint Lead Managers on the issuance of EUR 500 m senior bonds

FINMA Circular on Consolidated Supervision of Financial Groups

FINMA Circular "Duties of Conduct Under FinSA/FinSO"

FINMA Publishes Guidance on Stablecoins

Banking & Finance: Switzerland (8th edition)

Proposed New Information Duties – Need for Limits

Bericht des Bundesrates zur Bankenstabilität

Join the Team

Benjamin Leisinger

Career

Languages

Bar Registration

Teams

BenjaminLeisinger

Homburger advised 21Shares AG on the issuance and listing of its Dogecoin-linked Exchange Traded Product (DOGE)

Homburger advised New Zealand Local Government Funding Agency Limited on its debut issuance under its EMTN Programme and first issuance in CHF

Homburger advised the Joint Lead Managers on the issuance of EUR 500 m senior bonds

FINMA Circular on Consolidated Supervision of Financial Groups

FINMA Circular "Duties of Conduct Under FinSA/FinSO"

FINMA Publishes Guidance on Stablecoins

Banking & Finance: Switzerland (8th edition)

Proposed New Information Duties – Need for Limits

Bericht des Bundesrates zur Bankenstabilität

Join the Team

Benjamin Leisinger

Career

Languages

Bar Registration

Teams

Benjamin
Leisinger